State of
Rajasthan Vs. Bhup Ram [1997] INSC 27 (13
January 1997)

A.S.
ANAND, K.T THOMAS

ACT:

HEAD NOTE:

Thomas
J.

Respondent's
wife (Mst Chawli) was shot dead on 20.7.1985 while she was sleeping in her
house. Respondent Bhup Singh was alleged to be the killer. Police, after
investigation, upheld the allegation and challenged him.

Though
the Sessions Court convicted him of murder, the High Court of Rajasthan
acquitted him. This appeal has been filed by special leave by the State of Rajasthan in challenge of the aforesaid
acquittal.

Prosecution
case in a very short story: Chawli was first married to respondent's brother
who died after a brief marital life. Thereafter, Chawli was given in marriage
to the respondent, but the new alliance was marred by frequent skirmishes and bickerings
between the spouses. Chawli was residing in the house of her parents. The
estrangement between the couple reached a point of no return and the respondent
wished to get rid of her. So he went to her house on the night of occurrence
and shot at her with a pistol.

When
he tried to use the firearm again, Chawli's father who heard the sound of the
first shot rushed towards him and caught him but the killer escaped with the
pistol.

Chawli
told everybody present in the house that she was shot at by her husband Bhup
Singh. She was taken to the hospital and the doctor who attended on her thought
it necessary to inform a judicial magistrate that her dying declaration could
be recorded. Pursuant to it PW5- Bhagwan Singh who was judicial magistrate of
first class, Alwar, went to the hospital and recorded her dying declaration. At
2.30 P.M. she breathed her last. Police
registered the case on the sis of a statement recorded from Bhajan Lal, a neighbour.
On 22.7.1985, respondent was arrested in connection with another criminal case
and on the strength of the information elicited from him the police recovered
Article 4 - pistol.

The
bullet recovered from the body of Chawli as well as Article 4 - pistol were
sent to the ballistic expert. In his report, the said expert affirmed the
possibility of the bullet having been fired from the said pistol.

During
trial chawli's father (Ram Ratan - PW1) her sister (Rameshwari -PW2) and Bhajan
Lal - PW3 who gave the first information statement have been declared hostile
as they all supported the respondent. His version was that somebody else had
shot her dead and respondent was falsely implicated. Chawli's mother Smt. Mangli
was examined by the respondent as defence witness No.2 to support his plea.

However,
the trial court, after rejecting the evidence of PW1, PW2 and PW3 and also DW2,
placed full reliance on the dying declaration proved by PW - judicial
magistrate and also on the evidence pertaining to the recovery of Article 4 -
pistol and convicted the respondent and sentenced him to imprisonment for life.

The
Division Bench of the High Court of Rajasthan, which heard the appeal filed by
the respondent, declined to act on the dying declaration. The High Court held
that the evidence relating to recovery of pistol was outside the scope of
Section 27 of the Evidence Act inasmuch as the recovery was effected during
investigation of another case.

As
nothing else remained for the prosecution to embark upon, the Division Bench
acquitted the respondent.

If the
dying declaration recorded by PW5 judicial magistrate is reliable, there is no
legal hurdle in basing a conviction on it even without any supporting material.

The
statement in Ex. P-8 dying declaration is unmistakbly clear that her husband Bhup
Singh shot her with a pistol. But learned Judges of the High Court highlighted
two features in Ex. P-8 dying declaration as infirmities, vitiating its
evidentiary value. First is, deceased answered the questions put to her by the
magistrate in Bagri language whereas PW5 recorded it in Hindi in a narrative
from.

According
to the Division Bench the magistrate should have recorded the dying declaration
in the form of questions and answers. Second is, PW5 magistrate had not
ascertained from the doctor whether deceased was in a position to give a
conscious dying declaration.

Dr. Naresh
Kumar (PW7) who attended the deceased first when she was brought to the
hospital with bullet injury has given evidence that he sent a requisition to
the magistrate as he felt that a dying declaration from Chawli could be record.
PW5 0 judicial magistrate has deposed that he recorded in Hindi what the
deceased told him. The doctor and the judicial magistrate have said in one
accord that deceased was conscious when the statement was made. In the above
situation there was no justification for the High Court to assume that the
deceased would not have been conscious when she gave the statement to the
judicial magistrate. Similarly, it was a wrong assumption that deceased would
not have spoken in Hindi because PW5 has stated in his evidence positively that
deceased gave her answers in Hindi. Even otherwise, it is too much to think
that judicial magistrate would have recorded differently from what the deceased
had said to him.

Assuming
that the deceased gave her statement in her own language, the dying declaration
would not vitiate merely because it was recorded in a different language. We
hear in mind that it is not unusual that courts record evidence in the language
of the court even when witnesses depose in their own language. Judicial
officers are used to the practice of translating the statements from the
language of the parties to the language of the court. Such translation process
would not set either the admissibility of the statement or its reliability, unless
there are other reasons to doubt the truth of it.

Nor
would dying declaration go bad merely because the magistrate did not record it
in the form of questions and answers. It is axiomatic that what matters is the
substance and not the form. Questions put to the dying man would have been
formal and hence the answers given are material.

Criminal
courts may evince interest in knowing the contents of what the dying person
said and the questions put to him are not very important normally. That part of
the statement which relates to the circumstances of the transaction which
resulted in his death gets the sanction of admissibility.

Here
it is improper to throw such statement overboard on a pediantic premise that it
was not recorded in the form of questions and answers. (Vide Ganpat Mahadeo Mani
vs. State of Maharashtra (1993 Supp. (2) SCC 242).

We
find Ext. P-8 dying declaration as a clear and unambiguous statement. the
infirmities pointed out by the High Court are too tenuous to knock off such a
very valuable and sturdy item of substantive evidence.

The
High Court sidestepped the evidence regarding recovery of pistol and the
statement of the accused which led to it on the mere ground that the pistol was
recovered in connection with another case. That other case was registered on
9.7.1985 as Crime 116 of 1985 against the respondent and he was arrested on
22.7.1985 in connection therewith. PW12 - SHO of Raising Nagar Police Station
has deposed in this case that when respondent was questioned he told him that
the pistol was wrapped in a bag and was buried near his house. When respondent
was taken to that place he disinterred Article 4 - pistol and handed it over to
the police.

It is
clear from the above evidence that PW12 discovered the fact that respondent had
buried Article 4 - pistol. His statement to the police that he had buried the
pistol in the ground near his house, therefore, gets extricated from the ban
contained in Sections 25 & 26 of the Evidence Act as it became admissible
under Section 17. The conditions prescribed in Section 27 for unwrapping the
cover of ban against admissibility of statement of the accused to the police
have been satisfied. They are: (1) A fact should have been discovered in
consequence of information received from the accused; (2) He should have been
accused of an offence; (3) He should have been in the custody of a police
officer when he supplied the information; (4) The fact so discovered should
have been deposed to by the witness. If those conditions are satisfied, that
part of the information given by the accused which led to such discovery gets
denuded of the wrapper of prohibition and it becomes admissible in evidence. It
is immaterial whether the information was supplied in connection with the same
crime or a different crime. Here the fact discovered by the police is not
Article 4 - pistol, but that the accused had buried the said pistol and he knew
where it was buried. Of course, discovery of said fact became complete only
when the pistol was recovered by the police.

In
this context, we think it appropriate to quote the celebrated words of Sir John
Beaumont in Pulukuri Kottaya vs. Emperor: (AIR 1947 PC 67):

"The
their Lordships' view it is fallacious to treat the 'fact discovered' within
the section as equivalent to the object produced;

the
fact discovered embraces the place from which the object is produced and the
knowledge of the accused as to this and the information given must relate
distinctly to this fact....

Information
supplied by a person in custody that "I will produce a knife concealed in
the roof of my house" does not lead to the discovery of a knife; Knives
were discovered many years ago. It leads to the discovery of the fact that a
knife is concealed in the house of the informant to his knowledge, and if the knife
is proved to have been used in the commission of the offence, the fact
discovered is very relevant." (emphasis supplied) The ratio therein has
become locus classicus and even the lapse of half a century after its
pronouncement has not eroded its forensic worth. We may point out that this
court has approvingly referred to the said ratio in a number of decisions,
[e.g. Jaffer Husain Dastagir vs. The State of Maharashtra, AIR 1970 SC 1934; K.
Chinnaswamy Reddy vs.

P.S. Manocha,
(Assistant Director of State Forensic Science Laborarory, Rajasthan). The said
report which is evidence under Section 293 of the code of Criminal Procedure
proves that the bullet and pistol (involved in this case) were microscopically
examined and the expert expressed the opinion that the bullet could have been
fired from the said pistol. This is yet another circumstance which though overlocked
by the High Court, we bear in mind while considering the legal implication of
the evidence relating to the recovery of Article 4 - pistol.

For
the aforesaid reasons we are of the firm view that the High Court was clearly
wrong in marginalising the evidence of PW 12 that respondent told him about
concealment of Article 4 - pistol which is clearly admissible under section 27
of the Evidence Act.

As the
High Court committed in discarding the aforesaid two very valuable items of
evidence, we are constrained to interfere with the order of acquittal. We,
therefore, upset the impugned judgment and restore the conviction and sentence
passed on the respondent by the trial court. We direct the Sessions Judge, Alwar,
to take immediate steps to put the respondent in jail for undergoing the
sentence.